Tapihiko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 2603

Tapihiko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2603 (16 August 2022)

Division:GENERAL DIVISION

File Number:          2022/4420

Re:Clifford Tapihiko

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Griffin QC

Date:16 August 2022

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 23 May 2022 not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa is revoked.

......................................[sgd]..................................

Senior Member Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501CA(4) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – special consideration – mandatory cancellation of visa is revoked - decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

Deng v The Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FCA 115
FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Griffin QC

16 August 2022

1.       The Applicant, who is the New Zealand citizen, having been born in 1985, held a Class TY Subclass 444 Special Category (Temporary) visa (visa) which was the subject of mandatory cancellation due to his accepted substantial criminal record.

2.       The mandatory cancellation occurred on 21 May 2021 and subsequently, the Applicant sought revocation of that cancellation on 12 January 2022. On 23 May 2022, a delegate of the Minister decided not to revoke that cancellation and the matter now comes before this Tribunal for review of the delegate’s decision.

3.       There is some urgency in providing a decision, the 84^th day being the 16^th of August, 2022.

4.       The Applicant is presently 36 years of age and first came to Australia in November of 1989, having been granted various visas.

5. In this case, the Applicant fails the character test which is a matter of law, having been convicted in December 2020 of offences cumulatively 18 months imprisonment, although to be served by way of an Intensive Correction Order. Nonetheless, this operates as a failure of the character test at law and the issue before the Tribunal is a single one: whether there is another reason why the mandatory cancellation should be revoked under s 501 CA(4)(ii) of the Migration Act 1958 (Cth) (Act).

FACTS

6.       The Applicant lived in various parts of Australia, including Queensland, and eventually came to reside in New South Wales. The Applicant has worked in the past and the Tribunal notes and accepts that should he be allowed to remain in Australia, he has, with the assistance of others, managed to secure an offer of employment.

7.       The Applicant’s history of offending is lengthy, varied and shows a consistent pattern of not only re-offending in various categories but also demonstrates that the Applicant has not accepted the offers of rehabilitative assistance provided to him by various courts over the years. His offending commenced in 2003 and has increased in seriousness, although it is the Tribunal’s view, and an important feature of this case, that none of the Applicant’s offending is at the higher scale of seriousness. This, however, is not meant to condone or excuse the serious offending of domestic violence about which further comments will be made later in this decision.

8.       The Applicant is clearly a user of drugs and this may have exacerbated mental health issues from which he suffers, including anxiety and depression. It is of relevance, in the Tribunal’s opinion, to take note and give due weight to those mental health issues from which the Applicant suffers. The Applicant himself has said that his mental health became worse following the death of his father in about 2017, although the Tribunal notes that the Applicant’s offending commenced much earlier than that.

9.       It does appear that the Applicant recognises, particularly by the time of hearing having regard to his evidence, the seriousness of his offending. He has demonstrated now some insight into his offending behaviour, the reasons for such conduct and the Applicant, further, exhibits an appreciation of ways by which that offending behaviour should be able to be stopped.

10.     Not only are there drug offences in the Applicant’s background but there are a large number of traffic and driving-related offences which are serious in themselves, to the extent that they have the potential for causing serious harm to road users and other members of the community. Those driving offences have been persistent and have included driving without a licence on numerous occasions. Some may have the view that such conduct alone should disentitle the Applicant of the right to an Australian visa. This Tribunal, however, considers it is necessary to look more fully at the Applicant’s offending and other features relevant to this particular application.

11.     There are a number of offences of what might generally be described as dishonesty, adding another dimension to the Applicant’s worrying offending behaviour and more particularly, the fact that he seems unable to stop himself from continuing to offend in a variety of ways. That continued offending, an inability to stop himself from offending, is demonstrated more fully by reference to the failure by the Applicant in terms of breaches of Court Orders, from relatively minor breaches of reporting conditions of those Orders to more significant and more serious breaches, culminating in breaching Domestic Violence Orders imposed in December 2020.

12.     The domestic violence offences are regarded as very serious, although the Tribunal recognises in the hierarchy of seriousness those offences to which reference will be made are at the lower scale of offending.

13.     In 2017, the Applicant was convicted of assault against his then female partner by slapping her across the face in the context of a dispute which commenced as a verbal argument and escalated with both parties participating in the violence. An indication of the seriousness of that offending is the imposition of a $1,000 fine, although from the Tribunal’s point of view, such violence must be regarded, and is indeed regarded by this Tribunal, as particularly serious.

14.     In 2020, the Applicant, with another partner with whom he has two children, offended twice within a short period of time, by assaulting that partner, again by the use of his hands with hitting, kicking and hair pulling. There is no evidence that in any case there were threats of violence, intimidation in a specific sense, or the use or threatened use of any weapon. Any such violence is, however, viewed by the Tribunal as ultimately intimidatory.

15.     It is relevant to note that the Sentencing Court sentenced the Applicant to 18 months imprisonment, to be served by way of Intensive Correction Order. By January 2021, the Applicant had gone to the home of his then former partner and by reason of that presence at her home, breached the Domestic Violence Order which, in turn, operated to breach the Intensive Correction Order. No complaint was made by the victim, the Applicant’s former partner, about any other conduct or the conduct of being at her home on the occasion of the breach.

16.     It is highly relevant, in the Tribunal’s opinion, to note the circumstances of the Applicant’s conduct on this and all other occasions to examine and quantify the level of the subjective seriousness of the Applicant’s offending.

ISSUES

17. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

18. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

19. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

20. Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

21.     In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

22. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

23.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

24. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

25. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));

(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

26.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

27.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

28.     These principles are of course dependent upon the facts and circumstances of each case.

29.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

30.     The Tribunal must also take into account other considerations insofar as they are relevant.

31.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)  strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.

THE CHARACTER TEST

32. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

33. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

34. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

35. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

36.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

37.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

38.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

39.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

40.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

41.     The Applicant’s offending is serious, including many breaches of Court Orders, driving offences, actual domestic violence assault, which in the Tribunal’s view, in 2020, against Ms C, also amounted to family violence under Direction No. 90. All those offences, however, must be viewed in their context and regard had to the level of offending and the objective and subjective seriousness of the offending.

42.     Of significance is the fact that the mother of the Applicant’s two children, and the later victim of family violence referred to above, has provided a statement which in its terms implies that she has no residual concerns for her own safety and seeks to have the Applicant remain in Australia, presumably, on the Tribunal’s view, that the Applicant will be able to financially support the children and herself and provide some emotional support for the children. This, the Tribunal infers, from the tone of her plea on the Applicant’s behalf.

43.     It is almost irresistible to conclude on the evidence, having regard to the Applicant’s past history of offending, that he will continue to offend in the future and that the offending will be of the same character, that is to say, offences of dishonesty, driving misbehaviour, further breaches of Court Orders and most importantly, the likelihood of future family violence with his domestic partners.

44.     This position, however, the Tribunal finds, may possibly be ameliorated to some extent by the influence of his present partner, Ms B, who has some understanding and experience in domestic and family matters and appears to exert some positive influence and positive effect on the Applicant. The Tribunal, however, considers that this relationship is far too much in its infancy to give any credence to the Applicant’s positive assertions about the relationship’s positive effects on him. The Applicant now appears, by reason of his present predicament, to appreciate the full significance of further offending, as demonstrated by his statements in evidence during the course of the hearing, as well as written submissions to the Minister and Tribunal. The expressions of remorse by the Applicant are recognised as genuine, although alone, are such expressions of remorse too little to obviate future offending on its own.

45.     The Tribunal notes that the Applicant’s violent behaviour in the past is not general in nature and is clearly situational, limited to physical altercations with two domestic partners.

46.     The Applicant undertook various online courses that were meant to be rehabilitative in the area of domestic violence and drug use. The Tribunal notes, however, that an earlier attempt at rehabilitation by the Applicant of his own volition at Odyssey House, a recognised rehabilitative institution, ended with the Applicant voluntarily quitting the course. He subsequently continued to offend.

47.     In the Applicant’s favour, the Tribunal accepts that even in the particularly emotionally charged environment of immigration detention, there are no negative reports of the Applicant’s behaviour which suggests perhaps, better behaviour by the Applicant in the future.

48.     The potential loss to the Applicant of association with his two children is a further feature which appears to may have some moderating effect on the Applicant’s future conduct. The potential for work by a job offer, should the Applicant remain in Australia is, the Tribunal considers, a small but relevant consideration in the Applicant’s favour.

49.     The Applicant’s offending is serious. The extent of this conduct has been discussed above. There is a perceptible risk of future offending although that risk is ameliorated by the matters referred to above. Overall, it is the Tribunal’s opinion that this consideration must weigh against the Applicant, although the weight overall to be given to this consideration, having regard to the subjective nature of the offending, particularly taking into account the Applicant’s background and family history and all those other matters, the Tribunal considers is not ultimately determinative of the issue and there are other features relevant to other considerations which must be weighed, some of which weigh in the Applicant’s favour.

Primary Consideration 2 – Family violence committed by the non-citizen

50.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

51.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).

52.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

53.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

54.     The assault committed by the Applicant against Ms C, in 2020, amounts to family violence under Direction No. 90. The Tribunal considers that the evidence of the relationship between the Applicant and Ms C, who by the time of the commission of the offence was the mother of their two children, satisfactorily exposes a continuing family relationship although the relationship had, by the time of the commission of the offending conduct, broken down.

55.     It is irrelevant for the purposes of Direction No. 90 and a consideration of whether the Applicant has engaged in conduct which constitutes family violence that the relationship had, at the time of the relevant conduct, broken down.

56.     The Respondent submitted that the offence against Ms F, in 2017, should be considered conduct constituting family violence. The Tribunal does not agree. The recent decision in Deng v The Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FCA 115 identifies the need for a proper evidentiary basis for a conclusion that the parties were family members in order to bring into play the notion of family violence which, however, should not be viewed narrowly.

57.     The relationship with Ms F, which admittedly was of some duration and occurred during a period of separation from Ms C, lacks, in the Tribunal’s opinion, sufficient evidentiary basis for the Tribunal to conclude that the interaction between the Applicant and Ms F could properly be considered family violence, pursuant to paragraph 8 of Direction No. 90, even taking into account that the concept of family membership should not be narrowly construed or considered.

58.     In this case, therefore, there were two occasions of violent behaviour over a period of four days in June 2020 against Ms C, which the Tribunal is required to consider.

59.     On one occasion, a young child, who was the son of the Applicant, was present. There does not appear to have been any substantial escalation in the conduct which involved hitting, slapping and hair-pulling.

60.     The Tribunal accepts that the Applicant has engaged in rehabilitative anti-violence courses by the time of the hearing of this matter and has further expressed an understanding of the impact of his behaviour.

61.     The relevant aspects of the offending have been discussed above and in all the circumstances, taking into account the objective and subjective level of seriousness of the offending, this consideration should be regarded, and is regarded, in accordance with the requirements of Direction No. 90 as very serious by the Tribunal and must, therefore, weigh against the Applicant.

Primary Consideration 3 – Best interests of minor children in Australia

62.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

63.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

64.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

65.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

66.     There are a large number of nieces and nephews living in Australia with whom the Applicant is said to have relevant social and familial contact. Although there is no direct evidence in relation to each minor child separately, nonetheless, it is apparent that those children have parental figures in their lives. That is not to say that the Applicant’s relationship with those nieces and nephews is irrelevant. In fact, the Tribunal views those relationships as having some modest weight in the Applicant’s favour in relation to all those nieces and nephews.

67.     There are two children of the Applicant relevant to this consideration whose ages are 2 years and 8 years, both of whom are boys.

68.     The older child is in foster care. The Tribunal accepts the Applicant’s heartfelt written statement to the Tribunal about his relationship with this child. It is apparent that the Applicant cares greatly for the child and vice versa, even though of course the child is in foster care. There is a history of continued contact and appropriate parental association between the Applicant and this child. It is relevant to note the age of the child and the value of actual male parental contact between the father and son.

69.     In the course of oral evidence, the Applicant volunteered upon being questioned that the elder son was dissatisfied at the prospect of returning to live with his mother on account of his mother’s partner. The Applicant, in effect, went on to explain that the elder son would prefer to live with his father, the Applicant, should foster care cease. The Tribunal takes into account the elder child’s wishes and regards the evidence given by the Applicant as truthful and acceptable on this topic.

70.     As to the younger child who lives with his mother, there has been little real time for the Applicant to pursue a substantial relationship with the child since he was born, which was in early 2020. Nonetheless, on the evidence before the Tribunal, including the mother’s evidence, the Tribunal accepts that the Applicant has a positive and loving relationship with both children.

71.     It is undoubted that both minor children would clearly benefit from a relationship with their father who was present in their lives and actually physically present in Australia. It is, in the Tribunal’s opinion, an important consideration that a child in foster care would benefit greatly from contact with his actual father, in circumstances where the child is in foster care.

72.     For the foregoing reasons, the Tribunal considers that this consideration weighs very strongly in the Applicant’s favour.

Primary Consideration 4 – Expectations of the Australian community

73.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

74.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

75.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

76.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

77.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

78.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

79.     This consideration expresses the norm as it applies to the Australian community’s view but must be a consideration which is ultimately valued and weighed in terms of other contextual matters.

80.     That is to say, the weight to be given to this consideration takes into account, in this case, amongst other factors positive to the Applicant’s arguments, the fact that the Applicant has lived in Australia since he was approximately 3 years of age and the Tribunal accepts that the Applicant only knows Australia as his home.

81.     In the Tribunal’s opinion, in this case, that counts strongly in the Applicant’s favour and diminishes, to some extent, the overall weight to be attributed to this consideration which, nonetheless, must ultimately weigh against the Applicant.

Other considerations

82.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

83.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

84.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

85.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

86.     The Applicant is a New Zealand citizen. He has not lived there since he was a very young child and has, in fact, spent most of his life in Australia. He regards himself as an Australian. Should he be returned to New Zealand, he will undoubtedly suffer emotionally, mentally and economically.

87.     Mental anguish is likely to be increased on account of the Applicant’s suffering from anxiety and depression, which is accepted, should he be returned to New Zealand and removed from his children, family and friends.

88.     It is clear enough that the Applicant will not suffer any difficulties in terms of language, although there will no doubt be some cultural differences between the Australia the Applicant knows and New Zealand.

89.     The Applicant has lived in Australia since he was a child of 3 years of age and it is the Tribunal’s view that to remove him to New Zealand would significantly and negatively impact the Applicant, particularly having regard to the accepted diagnosis of anxiety and depression diagnoses.

90.     This consideration weighs heavily in the Applicant’s favour.

Impact on victims

91.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

92.     The Minister submits that while the victim of the Applicant’s last family violence conduct, Ms C, wrote in February 2022 in support of the Applicant, referring to the impact that removal would have on their children, that letter does not directly address the impact that revocation would have on her as a victim of the Applicant.

93.     The Tribunal accepts that submission and considers that this consideration, therefore, carries neutral weight.

Links to the Australian community

94.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

95.     The Tribunal concludes that the Applicant’s removal to New Zealand would have a negative impact on the Applicant’s family members, in particular his mother and his children, and the Tribunal further accepts that it would negatively impact his new partner, Ms B.

96.     It is apparent that the Applicant has established other associations with members of the Australian community whom the Tribunal infers would also be affected should he be removed.

97.     The Tribunal is prepared to give some modest weight to the relationship with the new partner who has two children even though that relationship has been of relatively short duration.

98.     The Tribunal notes that the Applicant arrived in Australia in 1989 and commenced offending in 2003. It is a relevant factor, as the Minister points out, that the Applicant has spent time contributing to the Australian community through working in a number of jobs and charity involvement.

99.     The Applicant appears to have maintained social connections with the mother of his children despite the breakdown of their relationship in order to provide a more suitable means of having contact with his children.

100.    The Tribunal concludes that this consideration carries real weight in the Applicant’s favour and therefore in favour of revocation.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

101.    There is no evidence that non-revocation of the Applicant’s visa would have any impact on Australian business interests.

CONCLUSION

102.    The Tribunal has been presented with a particularly difficult decision in this case. On the one hand there are real concerns raised on the evidence which find weight in the relevant considerations against revocation of the mandatory cancellation of the Applicant’s visa.

103.    Those matters include the assaults in relation to two women with whom he had intimate relationships and the possibility of future offending. There is an aspect of family violence, separately considered and discussed elsewhere in relation to one of the women. Community expectations also weigh against the Applicant in this regard.

104.    The Tribunal finds, however, that there are two separate and strong reasons which outweigh all other considerations against the Applicant.

105.    In short form, because these matters have been discussed relevantly above, the best interests of the Applicant’s children and his links to the Australian community, including the fact that he has spent almost his entire life in Australia, provide another reason for revocation of the mandatory cancellation of the Applicant’s visa.

106.    The Tribunal finds that the mandatory cancellation should be overturned.

ORDER

107.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 23 May 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Griffin QC

......................................[sgd]..................................

Associate

Dated: 16 August 2022

Date of hearing:	10 August 2022
Applicant:	Mr C Tapihiko
Solicitors for the Respondent:	Mr M Sheedy, Sparke Helmore